Child and Family Investigators clause in reform bill draws fire from legal lobby

Figuring some modest improvement is better than none, the Colorado House Judiciary Committee passed along a bill yesterday that's intended to make child and family investigators (CFI) and other professionals operating in family court more accountable -- after first amending and watering down its most significant measures, which had been heavily opposed by the Colorado Bar Association and other groups with a stake in maintaining the status quo.

Parental rights groups have long maintained that Colorado's family court system gives too much power to CFIs, several of whom are regarded as "hired guns" who charge excessive fees for custody evaluations and have demonstrated a pattern of bias -- toward fathers or mothers or certain attorneys or whoever is paying their bill. A major turning point in the battle came in last year's legislative session, when the parental groups managed to obtain a cap on fees for CFIs and strip them of immunity from oversight by state regulators.

Senate Bill 56, sponsored by Senator Morgan Carroll and Representative Chris Holbert, would have taken the campaign a step further, requiring CFIs and other court-appointed professionals to disclose potential conflicts of interest in a given case -- something that the professionals are already supposed to be doing, under standards established by the Colorado judiciary. But the bill would also have allowed judges to decide if a full-blown Parental Responsibility Evalaution (PRE), to be conducted by a mental-health professional, is needed in the case. As it stands now, the expensive evaluations are automatic if either party requests it, leading to stories of litigants using the process to impoverish and intimidate an ex-spouse.

Sponsor Holbert testified that he'd heard too many stories of the system being manipulated in his "neck of the woods" -- the 18th Judicial District, encompassing populous Arapahoe and Douglas counties -- to ignore them. "We seem to have an environment where people aren't innocent until proven guilty. They're just guilty," he said. "I think that's intolerable."

But the notion of making a PRE discretionary didn't sit well with the Colorado bar -- or the evaluators themselves. "You're creating another issue to fight about," warned Jerremy Ramp of the CBA's family law section, who suggested that judges would now have to hold hearings to determine if a PRE was necessary or not. (The Colorado judicial branch's own analysis of the bill suggested it would have no real impact on costs.)

Also opposing the measure was psychologist Kevin Albert, who testified that he worked as a CFI until the changes in the law last year. "At this point in time all I do are PREs," he said. But that didn't make him a "hired gun," he added. The vast majority of custody disputes settle before trial, and changing the PRE process in high-conflict cases would, in his view, only encourage more litigation.

Albert insisted that his colleagues generally act "in the best interest of the child." (It's a principle he's had to defend in difficult circumstances; he made headlines briefly twelve years ago for having treated Eric Harris, one of the Columbine killers, and then refusing after the shootings to turn over records to Harris's parents, citing patient confidentiality.) But in the six months since the judiciary has implemented a new complaint process for mental-health professionals acting as CFIs, the system has fielded around ten complaints and removed at least three people from further family court appointments.

The distressed parents who testified in support of the original bill insisted that the PRE is overused and can add tens of thousands of dollars to the cost of hammering out parenting time. They described the evaluators, like the CFIs, as a "clique" and "court-appointed whores" who fail to disclose that they often work for the same attorneys to achieve similar results. Their anecdotal horror stories, though, failed to persuade the committee to buck the professionals; the bill survived, but only after the clause about judicial discretion on the evaluations was removed.

"The Colorado bar lobbied so heavily that the outcome was predetermined," says Janice Whitaker, a member of the grassroots group Parents United for Change. "But I think we raised awareness that there are issues with PREs not having any standards of practice or specific areas of training, like is now required with the CFIs. There's much more oversight now for a CFI doing a $2,000 evaluation than there is for a PRE doing a $20,000 evaluation. I think the legislature understands that now."